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2017 DIGILAW 751 (CAL)

In Re Saroj Kumar Chatterjee v. .

2017-09-06

ARIJIT BANERJEE

body2017
JUDGMENT : Arijit Banerjee, J. 1. PLA No. 138A of 1990 was filed for grant of probate of a document claimed to be the last Will of Saroj Kr. Chatterjee, since deceased, of 143A Rash Behari Avenue, Calcutta, executed on 31 August, 1988. One Gopal Mitra (hereinafter referred to as 'Gopal') had filed a caveat which was found to be defective. By a judgment and order dated 13 June, 2006 passed in GA 349 of 2006 taken out in the probate proceeding, Ashim Kumar Banerjee, J. (as His Lordship then was) extended the time for Gopal to file caveat by a week from the date of the order. Such caveat was filed within the time specified and affidavit in support of the caveat was also filed within the time period stipulated under the Rules. Accordingly, PLA 138A of 1990 became a contentious cause and was re-numbered as TS No. 14 of 2006. 2. Upon the demise of Gopal, his legal heirs have been substituted as defendants in the present suit. In the course of hearing of the suit, Mr. Gooptu, Learned Counsel appearing for the propounder has raised a point that Gopal had no caveatable interest and accordingly the caveat filed by him should be discharged. Mr. Gooptu further submitted that this point should be decided as a preliminary point. 3. On the two issues i.e. whether Gopal had caveatable interest and whether the same should be decided by way of a preliminary issue, I have heard Mr. Gooptu for the propounder and Mr. Ghosh for the defendants at length. However, I will decide the issue of Gopal's caveatable interest at this stage only if I find that it is mandatory to do so in law. 4. Mr. Gooptu, Learned Counsel insisted that the issue of whether or not Gopal had caveatable interest must be decided as a preliminary issue. This is mandated by law. In this connection, he referred to Chapter XXXV Rule 30 of the Original Side Rules of this Court which reads as follows:- "R. 30. Trial of preliminary issue. The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator's interest. Trial of preliminary issue. The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator's interest. Where, upon the trial of such issue, it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be." 5. Learned Counsel then referred to the Apex Court's decision in the case of Krishna Kumar Birla vs. Rajendra Singh Lodha, (2008) 4 SCC 300 , and in particular he relied on paragraphs 115 and 116 of the judgment which read as follows:- "115. The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 116. If the contention of Mr. Jethmalani is to be accepted that there being no such provision in the Act for determination of such an issue as preliminary issue, the High Court could not have framed the Rules, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules." 6. Mr. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules." 6. Mr. Gooptu, then referred to the judgment and order dated 13 June, 2006 passed by Ashim Kumar Banerjee, J. (as His Lordship then was) in GA 349 of 2006 and in particular to the observation of the learned Judge that whether Gopal has a right to lodge caveat would only be considered at a proper stage as and when an affidavit in support of the caveat is filed and the suit is finally heard as a contentious cause. Learned Counsel submitted that this is the proper stage and whether or not Gopal had caveatable interest should be decided at this stage. 7. Mr. Gooptu then relied on the decision of the Hon'ble Apex Court in T.K. Lathika vs. Seth Karsandas Jamnadas, (1999) 6 SCC 632 , in support of his submission that where the question of maintainability of a suit arises, that question must be decided first and only if answered in the affirmative, the merits should be gone into. He also relied on the decision of the Hon'ble Apex Court in Sarla Goel vs. Kishan Chand, (2009) 7 SCC 658 , in support of his submission that where the circumstance demand, the word 'may' should be read as 'shall'. Hence, the word 'may' in the first sentence, in Rule 30 of Chapter XXXV of the Original Side Rules of this Court should be read as 'shall'. Learned Counsel particularly relied on paragraph 28 of the judgment which reads as follows:- "28. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be doubted that the procedure having been made by the Legislature how the rent can be deposited if it was refused to have been received or to grant receipt for the same. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. It is well settled that whether the word "may" shall be used as "shall", would depend upon the intention of the Legislature. It is not to be taken that once the word "may" is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory." For the same proposition, Mr. Gooptu also relied on the Apex Court's decision in Dinkar Anna Patil vs. State of Maharashtra, (1999) 1 SCC 354 . 8. Mr. Gooptu also relied on a decision of the Apex Court in State of Uttar Pradesh vs. Jogendra Singh, AIR 1963 SC 1618 , in support of his submission that when a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a 'command'. Sometimes, the legislature uses the word may out of deference to the high status of the authority on whom the power and obligation are intended to be conferred and imposed. Finally, Mr. Gooptu relied on the decision in Shri Rangaswami, The Textile Commissioner vs. The Sagar Textile Mills (P) Ltd., (1977) 2 SCC 578 , for the same proposition that the word 'may' is capable of being read as 'shall' or 'must' depending on the context. 9. Mr. Dhruba Ghosh, Learned Sr. Counsel on the other hand contended that it is not at all obligatory for the Court to decide the issue of caveatable interest as a preliminary issue. Learned Counsel referred to O. 14 R. 2 of the CPC which reads as follows:- "R.2. Court to pronounce judgment on all issues._(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. Learned Counsel referred to O. 14 R. 2 of the CPC which reads as follows:- "R.2. Court to pronounce judgment on all issues._(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, And for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 10. He submitted that the issue of caveatable interest is a mixed question of law and facts. It is not a pure question of law. Further, that issue does not relate to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and hence, the said question ought not to be decided as a preliminary issue. He also referred to Chapter XXXV Rule 28 of the Original Side Rules of this Court which provides, inter alia, that upon a probate proceeding being numbered as a suit, the procedure in the suit shall as nearly as possible be according to the provisions of the Civil Procedure Code. 11. Mr. Ghosh further submitted that R. 30 of Chapter XXXV of the Original Side Rules of this Court contemplates the determination of the issue of caveatable interest before directing the probate proceeding to be marked as a suit on the application of the propounder. No such application has been made by the propounder in the present proceeding since 2006 when the probate proceeding came to be marked as a suit. 12. Mr. No such application has been made by the propounder in the present proceeding since 2006 when the probate proceeding came to be marked as a suit. 12. Mr. Ghosh then referred to the judgment and order dated 13 June, 2006 passed by Ashim Kumar Banerjee, J. (as His Lordship then was) in GA No. 349 of 2006 and in particular to the observation therein that the interest of the caveator in the estate of the deceased would be considered at the time of final hearing of the suit. Hence, he submitted, that the said question should be decided along with other issues. He also pointed out that no preliminary issue has been framed in this suit. 13. I have given my anxious consideration to the rival contentions of the parties. In my considered opinion, it is not mandatory for the Probate Court to decide the issue of caveatable interest as a preliminary issue. R. 30 of Chapter XXXV of the Original Side Rules of this Court does not warrant such an interpretation. The said rule gives a discretion to the Court to decide such issue as a preliminary issue but does not make it obligatory for the Court to do so. It may be noted that the word "shall" has also been used in the said Rule by making it obligatory upon the Court to order the caveat to be discharged if upon trial of the issue of caveatable interest it appears that the caveators have no interest in the estate of the deceased. Further, the Court is given the discretion to decide such issue as a preliminary issue prior to making an order under R. 28 of Chapter XXXV for marking the probate proceeding as a suit, and that too on an application made by the petitioner in the probate proceeding. In the present case, the propounder did not make any such application. Hence, he cannot insist on the issue of Gopal's caveatable interest being decided as a preliminary issue. R. 30 of Chapter XXXV is clearly permissive and not mandatory. 14. Further, O. 14 R. 2 of the CPC is also clearly permissive and is not any statutory mandate on the Court. I would have found force in Mr. Gooptu's submission if determination of the issue of Gopal's caveatable interest as a preliminary issue would have disposed of the suit. 14. Further, O. 14 R. 2 of the CPC is also clearly permissive and is not any statutory mandate on the Court. I would have found force in Mr. Gooptu's submission if determination of the issue of Gopal's caveatable interest as a preliminary issue would have disposed of the suit. No question of disposing of part of the suit on a preliminary issue arises since the only real issue in the suit is whether or not probate of the Will in question should be granted as claimed by the propounder. No useful purpose would be served by deciding the question of Gopal's caveatable interest as a preliminary issue. 15. I have considered the decisions of the Hon'ble Apex Court relied upon by Mr. Gooptu in support of his submission that where the context so demands, the word 'may' in a statute or in a rule should be read as 'shall' or 'must'. However, in those cases, a discretion coupled with an obligation was imposed on the concerned public authorities and in that context the Hon'ble Apex Court made the observations which I have noted above. In my opinion, the instant case cannot be said to be similar to those cases. None of those cases have any application to the facts of the present case. 16. Even if I were to hold that Gopal had no caveatable interest, still the propounder would have to prove the Will of the testator. Hence, a decision regarding caveatable interest of Gopal one way or the other at this stage will not put an end to the instant probate proceeding. 17. In view of the aforesaid, I cannot accept the contention of Mr. Gooptu. There is no warrant for deciding the question of Gopal's caveatable interest as a preliminary issue. Accordingly, I shall decide the issue of Gopal's caveatable interest along with other issues once the hearing of the suit is finally concluded. 18. Let TS No. 14 of 2006 be listed for further hearing on week after the Puja Vacation.